Last week, the Supreme Court decided Moore v. Harper, a momentous case with state democracy in the balance.
Michael Morse, a 2013 graduate of Penn’s College of Arts and Sciences, just returned to the University this month as an associate professor at Penn Carey Law. An expert on voting rights, election law, and the criminal justice system, Morse also has a secondary appointment in political science. Penn Today checked in with Morse to get his thoughts on the Moore v. Harper ruling and what it means for American democracy going forward.
Moore addressed the independent state legislature theory, a once-fringe legal theory about how to understand the word “legislature” in two similar constitutional provisions. In general, the Constitution directs states to administer federal elections. For example, under the Elections Clause, the “times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof.”
“In Moore, the independent state legislature theory came up in the context of the North Carolina state legislature’s partisan gerrymander,” Morse says. “The legislature redistricted the state’s congressional map to favor Republican candidates. A few terms ago, the Supreme Court shut down attempts to challenge partisan gerrymanders under the federal constitution. So, several groups instead challenged North Carolina’s map under their state constitution.”
The North Carolina Supreme Court embraced the plaintiffs’ theory and held that the partisan gerrymander violated the state constitution. Usually, that’s the end of the story, he says.
“Ordinarily, federal courts do not review state court decisions based on state law, so the state supreme court’s anti-gerrymandering decision would have been a victory for voting rights,” Morse says. “But the state legislators argued that the state court’s decision violated federal law, namely the Elections Clause.”
North Carolina argued that its state legislature was not subject to its own state constitution’s limits when it acted pursuant to the Elections Clause because the power to set the times, places, and manner of federal elections was assigned to the “legislature.” In the run-up to Supreme Court’s opinion, North Carolina’s argument had been roundly rejected by scholars of all stripes.
Here, Morse offers his top takeaways from the Court’s ruling.
The Supreme Court rejected the most extreme version of the independent state legislature theory
In an opinion written by Chief Justice John Roberts, the Court rejected North Carolina’s theory. It held that the ‘Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.’ Instead, based on both history and precedent, the Court explained that a state legislature is ’created and bound by its state constitution,’ even when acting pursuant to the Elections Clause.
That’s a relief for democracy
The extreme theory could have upended U.S. elections. It threatened to nullify state constitutional bans on gerrymandering and prevent advocates from using state constitutional protections of the right to vote to check state legislatures, a particularly important role when the federal judiciary is hostile to voting rights. Further, the extreme theory would have likely sown confusion by unraveling the practice of ‘unitary’ federal and state elections. Instead, there might have been different rules in federal versus state elections. That said, even under the most extreme version of theory, federal due process and equal protection doctrines, as well as federal law, would still have constrained state legislative attempts at election subversion.
Some commentators, such as retired Judge J. Michael Luttig, a prominent conservative, now consider Moore ‘the single most important constitutional case for American democracy.’ But that praise misses an important implication of the decision.
The Supreme Court adopted a weaker version of the independent state legislature theory
The Court explained that, ‘although we conclude that the Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein.’ Instead, the court announced a new standard for federal courts to apply under the Elections Clause: ‘State courts may not transgress the ordinary bounds of judicial review.’ Otherwise, the Court explained, a state court could ‘arrogate to themselves the power vested in state legislatures to regulate federal elections.’
Chief Justice Roberts’ opinion thus cemented a theory first articulated—but not adopted—in Bush v. Gore. In fact, Moore goes further. While Bush v. Gore focused on state statutory interpretation, Moore applies a version of the independent state legislature theory to state constitutional interpretation.
The three liberal justices likely signed on to this weaker theory to secure enough votes to reject the extreme one.
The implications of the decision are not clear
So when might a state court, interpreting its own state constitution, ‘transgress the ordinary bounds of judicial review?’
The majority of the Court did ‘not adopt … any … test by which we can measure state court interpretations of state law in cases implicating the Elections Clause.’ In fact, the court did not even decide whether the North Carolina decision on review ‘transgress[ed] the ordinary bounds of judicial review.’ As a result, we ultimately don’t know what federal review will look like in practice.
There would be little concern if federal review under the Elections Clause was deferential to state courts. But federal review might instead have more teeth.
Justice Brett Kavanaugh wrote separately to express his view that ‘we necessarily must examine the law of the State as it existed prior to the action of the [state] court.’ This anti-novelty view might mean the North Carolina Supreme Court’s anti-gerrymandering decision is the type of state court decision that would be reversed by a federal court, since prior to the case the state constitutional provision that ‘all elections shall be free’ (as well as other provisions) had not been read to prohibit partisan gerrymandering. That would stunt the development of the law of democracy. But it likely wouldn’t affect states with more explicit anti-gerrymandering constitutional provisions.
Beyond Justice Kavanaugh, it’s not clear yet how the dissenting justices in Moore might approach federal review since at least two of them (Justices Clarence Thomas and Neil Gorsuch) are skeptical of federal review, perhaps they would join the liberals and won’t go along with the new enterprise; but, since all three (including Justice Samuel Alito) generally believe state constitutions do not impose substantive constraints on state legislatures, they probably will.
In practice, there may be enough procedural and prudential obstacles to prevent lower federal courts from reviewing most state court decisions under the Elections Clause. But Moore seemingly allows lower federal courts to review the actions of local and state election officials too.
Ultimately, the lack of a standard is the problem
There will very likely be more litigation about the bounds of Moore v. Harper in the run-up to—and perhaps the aftermath of—the 2024 presidential election. Ultimately, election distrust thrives on that type of uncertainty. So, Moore is a mixed bag.
Justice Thomas, in dissent, put the concern well: ‘The majority open[ed] a new field for Bush-style controversies over state election law—and a far more uncertain one.’
